A federal judge in Los Angeles, acceding to a Bush administration request, Monday invalidated protection of several hundred thousand acres of land in Southern California deemed essential to the survival of two imperiled species.
U.S. Fish and Wildlife Service officials have said the request is part
of a broad reevaluation of "critical habitat" designations
involving millions of acres of protected land, mainly in California.
Environmentalists fear the administration's action is the first step
in a broad rollback of protections for rare plants and animals covered
by the Endangered Species Act. "This is a huge issue because
there are so many other critical habitat designations impacted,"
said William Snape, vice president of legal affairs for Defenders of
Wildlife, in Washington, D.C. "I think it's upwards of 100
species whose habitats are hanging in the balance."
In his ruling Monday, U.S. District Judge Stephen V. Wilson said the
Fish and Wildlife Service must redo the economic analysis of the
effects of designating more than half a million acres as critical
habitat for the coastal California gnatcatcher, a tiny bird, and the
San Diego fairy shrimp.
Real estate developers, ranchers and farmers have been lobbying the
Bush administration to make it easier and cheaper to build on critical
habitat in a number of places around the country.
In the Southern California case, the judge left open the question of
whether existing protections would stay in place until a revised
economic analysis and new habitat designations are completed in 2004.
Wilson said he will not rule on that issue until he receives
additional written arguments from attorneys representing the federal
wildlife agency and an environmental group.
"To vacate the critical habitat in place would mean, for a period
of time, there would be no critical habitat," Wilson said during
a 45-minute hearing. "The court's concern is, how can there be
some [protection] in the intervening period? ... There apparently is a
movement to begin development of at least part of the land."
This is a key concern of environmentalists, who fear that nullifying
existing rules would remove major hurdles for two huge
developments--Rancho Mission Viejo's 14,000 homes and a toll road--and
allow the destruction of sensitive habitat in southern Orange County.
One of the most controversial provisions of the Endangered Species
Act, critical habitat is a category of protected land in which
building and other activity can be limited or even barred to ensure
the survival of rare plants and animals. The land at issue in Monday's
hearing is covered with coastal sage scrub, where the threatened
gnatcatcher nests, and dotted with seasonal pools that are home to the
endangered fairy shrimp.
In 2000, the Fish and Wildlife Service designated 513,650 acres in Los
Angeles, Orange, San Diego, San Bernardino and Riverside counties as
critical habitat for the gnatcatcher, and 4,025 acres in Orange and
San Diego counties for the fairy shrimp.
Kristen Gustafson, the U.S. Justice Department attorney representing
the Fish and Wildlife Service, said lifting the land protection would
not affect the species. "The gnatcatcher and fairy shrimp will
not suffer harm if the habitat were vacated," she said.
She said both creatures would be adequately protected by other
sections of the Endangered Species Act.
Andrew Wetzler, a lawyer who represented the Natural Resources Defense
Council at the hearing, disagreed.
"There's no clearer indication of the importance of critical
habitat than the fact that Rancho Mission Viejo and the transportation
corridor agencies are suing to overturn it," Wetzler said after
"We're obviously disappointed that the service once again failed
to defend its own regulations," he said. The administration's
request to eliminate the designations coincides with a slew of
lawsuits brought by developers and other landowners nationwide,
challenging how the government conducted its financial analyses of the
effect of designating critical habitat.
Before designating habitat, the service is legally required to analyze
the economic consequences for developers, property owners, cities and
others who have an interest in the land. Until last year, nearly all
those analyses had said creating critical habitat would have little to
no economic effect.
Developers and others have long argued that habitat designations were
far costlier than the government estimated. One developer-funded study
in California estimated that the gnatcatcher critical habitat alone
would cost the state $5.5 billion in lost jobs, housing and property
value over 20 years.
For many property owners, the designations amount to little more than
lines on a map. But compliance can be difficult for landowners
dependent on federal subsidies or permits--as many major developers
and road builders are.
"This [ruling] is further confirmation of our belief that the law
requires a real thorough economic analysis," said Rob Thornton, a
lawyer representing the Building Industry Assn. of Southern
California, the toll road builders and others.
The Fish and Wildlife Service agreed that a new economic analysis was
needed, citing a federal appeals court ruling in May that struck down
protection of stream-side habitat in New Mexico for another bird, the
Southwestern willow flycatcher.
The 10th Circuit Court of Appeals ruled that the process used to
decide what lands to protect did not adequately analyze the financial
effect on property owners and others who make a living from the land.
Federal wildlife officials have said they were trying to be consistent
with that ruling by reviewing up to 10 habitat designations that
protect millions of acres of land.